Upper Tribunal (Immigration and asylum chamber), 2015-10-16, IA/42242/2014
| Jurisdiction | UK Non-devolved |
| Date | 16 October 2015 |
| Published date | 05 May 2016 |
| Hearing Date | 08 September 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/42242/2014 |
Appeal Number: IA/42242/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA 42242 2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 8 September 2015 |
On 16 October 2015 |
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Before
UPPER TRIBUNAL JUDGE PERKINS
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SYED SAQIB ABBAS
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr G Davison, Counsel, instructed by Zenith Solicitors
DECISION AND REASONS
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This is an appeal brought by the Secretary of State against a decision of First-tier Tribunal Judge Majid who allowed an appeal by the respondent, a citizen of Pakistan, against a decision of the Secretary of State refusing him leave to remain in the United Kingdom under the European Economic Area Regulations.
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I begin by looking at the Secretary of State’s refusal letter. This set out three bullet points which identified things that the Respondent (hereinafter “the claimant”) had to prove.
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Firstly he had to prove that he based his case on rights of residence established during the time that he was married to an EEA national. The Secretary of State said that the Claimant had to provide evidence that his former spouse, who was accepted to be a national of an EEA state, was exercising free movement rights in the United Kingdom at the time of the divorce.
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Secondly the claimant had to prove that his marriage had lasted for at least three years and that for at least one of those years he and his former spouse had lived together in the United Kingdom.
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Thirdly the claimant had to prove that he was currently employed or self-employed or self-sufficient as if he were himself an EEA national.
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This summary is not the extent of the letter which also makes it clear that in order to meet the requirements of Regulation 10(6), and so qualify for permanent residence, the claimant had to provide evidence that since the date of divorce he had been a “worker” (as is suggested above) and, additionally, that he had to prove that he had retained rights of residence following the divorce or that he had resided under the Regulations for five continuous years. The need for five years continuous residence before becoming entitled to reside permanently is important and it is something which appears to have been overlooked.
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Dr Majid is well-known to the Tribunal and his Decisions have a distinctive style. Here he has made findings, particularly at paragraph 13. No doubt thinking of the bullet points identified in the refusal letter he noted, and, I am satisfied, noted in a way that must amount to a finding, that the claimant had been married for more than three years, that at least twelve months of those three years had been spent in the United Kingdom and, and this is the crucial, at paragraph 13(c), that the [claimant’s] bundle contained the wage slips (in May 2014 when the divorce took place), a form P60 relating to the claimant’s former spouse and a letter from the claimant’s landlady confirming that the claimant’s now divorced wife was working when the divorce took place.
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None of the evidence identified there was completely conclusive but it was perfectly cogent evidence in the form of a statement or a letter or apparently genuine wage slips or copies thereof, and there is no basis for criticising the First-tier Tribunal Judge for believing that part of the evidence. The Secretary of State’s grounds mount a challenge but they are wrong. For example they suggest at point 9 that it was incumbent upon the Tribunal to make an Amos direction (see Amos v SSHD [2011] EWCA Civ 55). It was not. The appeal was not about the Tribunal making investigations but about the claimant proving his case. It was incumbent upon the Secretary of State to turn up and argue her case and if she chose not to do that she cannot complain if apparently cogent evidence is accepted at face value without more. Believing such evidence was not a fault on the part of the First-tier Tribunal Judge and I am satisfied that the evidence was accepted and the judge necessarily, by implication if not expressly, made findings, and the findings were that at the time of the divorce both parties were in regular work, that since the divorce the claimant has continued to be in regular work and the claimant's wife was in regular work from 3 October 2013. All of foregoing is proved by documents which I am satisfied the First-tier Tribunal Judge accepted rationally.
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The difficulty is that that these are not sufficient reasons for allowing the appeal. The difficulty, as is indicated in the refusal letter although not emphasised, is that the claimant had to show that he had resided in accordance with the Regulations for five years, not merely that he had resided for five years. The period of five years can include time when the claimant had a continuing right of residence after the divorce but he cannot rely on his work before the divorce, he has to rely on his wife’s work. The evidence does not establish that the claimant’s wife was exercising treaty rights earlier than October 2013 and that is just not long enough to establish the five years which is necessary to qualify under the...
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